"A [preacher] who does not love art, poetry, music and nature can be dangerous. Blindness and deafness toward the beautiful are not incidental; they are necessarily reflected in his [preaching]." — BXVI

10 April 2010

Steven's resignation will move Kennedy in the Right direction

The Legal Fanboy in me couldn't resist posting this insightful analysis on the effect Justice Steven's resignation from the SCOTUS would have on future court-rulings.

The bottomline: it's pretty much good news for the Court's "conservatives."

First, take the issue of Kennedy’s soon-to-emerge role as an “assigning” Justice. When the Court is divided on any case being decided on the merits, the senior Justice in the majority gets to select a colleague (or take on personally) the task of writing the opinion for the majority. Depending upon who gets the assignment, that can shape the actual outcome of the case, and also influence its breadth or narrowness. Also, a colleague whose support may be somewhat shaky can be handed an assignment in order to nail down that colleague’s vote and preserve a narrow majority.

If the Chief Justice is in the majority when the Court divides, the Chief always has the assigning function, because, however long in the job of Chief Justice, that member of the Court always has top seniority. Only if the Chief Justice is not in the majority does the assigning task then fall to the Justice next highest in seniority. That has been Justice Stevens, for 16 years of his 34 years on the Court.

But Kennedy is moving up only a single notch in seniority. He is still outranked in seniority by Justice Antonin Scalia. So, if the Court’s eight other Justices were to split along conservative and liberal lines, and the four most likely conservative Justices attracted Kennedy’s vote, the assigning task would fall to the Chief Justice. In any divided Court with Kennedy and Scalia on the same side, Scalia would always be the assigning Justice should the Chief Justice not be on that side.

But, if Kennedy were to line up, in a divided case, with the Court’s four moderate-to-liberal Justices (assuming Stevens’ replacement sides with that bloc), Kennedy would always have the assigning task, inheriting it from Stevens. He would outrank, in seniority, all of the Justices in that bloc. He thus will be able to shape even the Court’s more liberally inclined outcomes, by the way he chooses the opinion authors. And, if he thought any of the other four might use an assignment to write an opinion more sweeping than he would want, he could assign the task to himself, and keep it within whatever bounds he chose so long as it did not drive off one of the four other votes he would need to keep a majority.